(By Delegates Staton (By Request), Rowe, Riggs
and Ashley)
(Introduced February 16, 1995; referred to the
Committee on the Judiciary.)

A BILL to amend and reenact section two, article one , chapter
twenty-nine-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section two, article three of said chapter, all relating to
authorizing the secretary of state to make technical
corrections to an existing rule where necessary to ensure or
improve the accuracy, integrity and clarity of the code of
state regulations.

Be it enacted by the Legislature of West Virginia:
That section two, article one, chapter twenty-nine-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section two, article
three of said chapter be amended and reenacted, to read as follows:CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.ARTICLE 1. DEFINITIONS AND APPLICATIONS OF CHAPTER.

§29A-1-2. Definitions of terms used in this chapter.
For the purposes of this chapter:
(a) "Agency" means any state board, commission, department,
office or officer authorized by law to make rules or adjudicate
contested cases, except those in the legislative or judicial
branches;
(b) "Contested case" means a proceeding before an agency in
which the legal rights, duties, interests or privileges of specific
parties are required by law or constitutional right to be
determined after an agency hearing, but does not include cases in
which an agency issues a license, permit or certificate after an
examination to test the knowledge or ability of the applicant where
the controversy concerns whether the examination was fair or
whether the applicant passed the examination and shall not include
rule making;
(c) "Interpretive rule" means every rule, as defined in
subsection (i) of this section, adopted by an agency independently
of any delegation of legislative power which is intended by the
agency to provide information or guidance to the public regarding
the agency's interpretations, policy or opinions upon the law enforced or administered by it and which is not intended by the
agency to be determinative of any issue affecting private rights,
privileges or interests. An interpretive rule may not be relied
upon to impose a civil or criminal sanction nor to regulate private
conduct or the exercise of private rights or privileges nor to
confer any right or privilege provided by law and is not admissible
in any administrative or judicial proceeding for such purpose,
except where the interpretive rule established the conditions for
the exercise of discretionary power as herein provided. However, an
interpretive rule is admissible for the purpose of showing that the
prior conduct of a person was based on good faith reliance on such
rule. The admission of such rule in no way affects Xany legislative
or judicial determination regarding the prospective effect of such
rule. Where any provision of this code lawfully commits any
decision or determination of fact or judgment to the sole
discretion of any agency or any executive officer or employee, the
conditions for the exercise of that discretion, to the extent that
such conditions are not prescribed by statute or by legislative
rule, may be established by an interpretive rule and such rule is
admissible in any administrative or judicial proceeding to prove
such conditions.
(d) "Legislative rule" means every rule, as defined in
subsection (i) of this section, proposed or promulgated by an
agency pursuant to this chapter. Legislative rule includes every
rule which, when promulgated after or pursuant to authorization of
the Legislature, has (1) the force of law, or (2) supplies a basis
for the imposition of civil or criminal liability, or (3) grants or
denies a specific benefit. Every rule which, when effective, is
determinative on any issue affecting private rights, privileges or
interests is a legislative rule. Unless lawfully promulgated as
an emergency rule, a legislative rule is only a proposal by the
agency and has no legal force or effect until promulgated by
specific authorization of the Legislature. Except where otherwise
specifically provided in this code, legislative rule does not
include (A) findings or determinations of fact made or reported by
an agency, including any such findings and determinations as are
required to be made by any agency as a condition precedent to
proposal of a rule to the Legislature; (B) declaratory rulings
issued by an agency pursuant to the provisions of section one,
article four of this chapter; (C) orders, as defined in subdivision
(e) of this section; or (D) executive orders or proclamations by
the governor issued solely in the exercise of executive power, including executive orders issued in the event of a public disaster
or emergency;
(e) "Order" means the whole or any part of the final
disposition (whether affirmative, negative, injunctive or
declaratory in form) by any agency of any matter other than rule
making;
(f) "Person" includes individuals, partnerships, corporations,
associations or public or private organizations of any character;
(g) "Procedural rule" means every rule, as defined in
subsection (i) of this section, which fixes rules of procedure,
practice or evidence for dealings with or proceedings before an
agency, including forms prescribed by the agency;
(h) "Proposed rule" is a legislative rule, interpretive rule,
or a procedural rule which has not become effective pursuant to the
provisions of this chapter or law authorizing its promulgation;
(i) "Rule" includes every regulation, standard or statement of
policy or interpretation of general application and future effect,
including the amendment or repeal thereof, affecting private
rights, privileges or interests, or the procedures available to the
public, adopted by an agency to implement, extend, apply, interpret
or make specific the law enforced or administered by it or to govern its organization or procedure, but does not include
regulations relating solely to the internal management of the
agency, nor regulations of which notice is customarily given to the
public by markers or signs, nor mere instructions. Every rule
shall be classified as "legislative rule," "interpretive rule" or
"procedural rule," all as defined in this section, and shall be
effective only as provided in this chapter;
(j) "Rule making" means the process for the formulation,
amendment or repeal of a rule as provided in this chapter.(k) "Technical corrections to a rule" means non-substantive
revisions to an existing rule which include, but are not limited
to: correcting typographical errors; correcting inappropriate code
citations and cross references; correcting formatting errors; etc.,
and which do not change the meaning, intent, or purpose of the
rule.

ARTICLE 3. RULE MAKING.

§29A-3-2. Limitations on authority to exercise rule making power.

(a) Except when, and to the extent, that this chapter or any
other provision of law now or hereafter made expressly exempts an agency, or a particular grant of the rule-making power, from the
provisions of this article, every grant of rule-making authority to
an executive or administrative officer, office or agency,
heretofore provided, shall be construed and applied to be effective
only:
(1) If heretofore lawfully exercised in accordance with the
prior provisions of this chapter and the resulting rule has not
been revoked or invalidated by the provisions hereof or by the
agency, or
(2) If exercised in accordance with the provisions hereof.
(b) No executive or administrative agency shall be deemed to
have power and authority to promulgate a legislative rule without
compliance with this article unless: (1) The provision of this
code, heretofore or hereafter enacted, granting such power and
authority, expressly exempts its exercise from legislative rule-
making review prior to promulgation or (2) the grant of such power
and authority is exempted from the application of this chapter by
the express provisions of this chapter. To the extent any such
grant of power and authority, not so exempt, shall be deemed to
exceed the limits and provisions of this article, such power and
authority to promulgate legislative rules is hereby revoked.(c) The secretary of state has the authority to, and may, make
technical corrections to an existing rule where necessary to insure
or improve the accuracy, integrity, and clarity of the code of
state regulations: Provided, That the same notice and filing
procedures as set forth in sections two and eight of this article
are complied with for the affected rule.

NOTE: The purpose of this bill is to authorize the secretary
of state to make technical corrections to an existing rule where
necessary to insure or improve the accuracy, integrity, and clarity
of the code of state regulations.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.